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Austin v. Jo-Ann Stores, LLC

United States District Court, N.D. Texas, Fort Worth Division

May 10, 2019

ROBERTA AUSTIN, Plaintiff,
v.
JO-ANN STORES, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          REED O' CONNOR UNITED STATES DISTRICT JUDGE.

         Before the Court are Defendant’s Motion for Summary Judgment and Brief in Support (ECF Nos. 14–15), filed February 5, 2019; Plaintiff’s Response and Brief in Support (ECF Nos. 23–25), filed February 26, 2019; and Defendant’s Reply (ECF No. 26), filed March 8, 2019. Having reviewed the motion, briefing, and applicable law, the Court finds that Defendant’s motion should be and is hereby GRANTED.

         I. FACTUAL BACKGROUND

         On February 1, 2019, Plaintiff Roberta Austin was shopping at a Jo-Ann fabric store when she slipped on either: (1) red glitter; (2) black glue; (3) a combination of glitter and glue; or (4) loose staples. Pl.’s Br. Supp. Resp. 5, ECF No. 25 [hereinafter, “Pl.’s Br.”]. Plaintiff fell to ground, injuring her shoulder. Id. Emergency personnel were called and arrived at the Jo-Ann store at 1439 W. Pipeline Road, Hurst, Texas, a short time later. Id. Paramedics assisted and transported Plaintiff to the hospital in an ambulance.[1] Id. Plaintiff brings this suit against Defendant Jo-Ann Stores seeking to recover damages for: (1) her medical expenses; (2) pain and suffering; (3) mental anguish; (4) physical impairment; (5) disfigurement; and (6) exemplary damages. Am. Compl. 3– 4, ECF No. 5.

         II. LEGAL STANDARD

         The Court may grant summary judgment where the pleadings and evidence show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute as to any material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant must inform the court of the basis of its motion and demonstrate from the record that no genuine dispute as to any material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         When reviewing the evidence on a motion for summary judgment, courts must resolve all reasonable doubts and draw all reasonable inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). The court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson, 477 U.S. at 255. If there appears to be some support for disputed allegations, such that “reasonable minds could differ as to the import of the evidence,” the court must deny the motion. Id. at 250.

         III. ANALYSIS

         As an initial matter, the Court must resolve Plaintiff’s contention that she “has plead a viable premises liability and/or negligence claim.” Pl.’s Resp. 1, ECF No. 24. “In Texas, when an injury arises on a premises, two potential causes of action generally arise against the premises owner and/or occupier-negligent activity and premises liability.” Robles v. Ross Stores, Inc., No. 3:16-CV-0086-B, 2017 WL 2306527, at *2 (N.D. Tex. May 26, 2017) (citing U.S. Dist. Court S. Dist. of Tex. Hous. Div. Charles Plata v. Chipotle Mexican Grill, Inc., H-15-2436, 2016 WL 126420, at *1 (S.D. Tex. Jan. 12, 2016)). “Although negligent activity and premises liability claims are branches of the same tree, they are conceptually distinct: ‘[N]egligent activity encompasses a malfeasance theory based on affirmative contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory based on the owner’s failure to take measures to make the property safe.’” Id. (citing Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014) (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010))). “When an alleged injury is caused by a condition created by some activity rather than by the activity itself, a plaintiff is limited to a premises defect theory of liability.” Id. (emphasis added); Garcia v. Ross Stores, Inc., 896 F. Supp. 2d 575, 579 (S.D. Tex. 2012). Here, Plaintiff does not allege she was injured by some negligent activity itself.[2] Rather, Plaintiff alleges she was injured when she slipped on a substance on the floor of a Jo-Ann fabric store and argues that condition should have been prevented. Accordingly, Plaintiff’s cause of action is properly construed as a textbook premises liability claim, not a negligent activity claim.[3]

         A. Premises Liability Claim

         Defendant moves for summary judgment, arguing Plaintiff does not present sufficient evidence to prevail on her premises liability claim. Specifically, Defendant argues: (1) Plaintiff cannot demonstrate Defendant had actual knowledge of the substance on the floor; (2) Plaintiff cannot demonstrate Defendant had constructive knowledge of the substance on the floor; and (3) Defendant owed no duty to Plaintiff because the alleged condition was open and obvious. Def.’s Br. Supp. Mot. Summ. J. 5, ECF No. 15 [hereinafter, “Def.’s Br.”]. Plaintiff responds by arguing that the parties dispute certain material facts, which should preclude summary judgment. Pl.’s Br. 9–12, ECF No. 25. Specifically, Plaintiff argues that: (1) there is a fact issue as to whether Defendant had actual knowledge of Plaintiff’s accident; (2) there is a fact issue as to whether the substance was open and obvious; (3) principles of equity should prevent Defendant from prevailing by claiming ignorance of the accident; and (4) Defendant should have discovered the substance before Plaintiff slipped. Id.

         “In order to prevail on a claim for premises liability, plaintiff must establish that: ‘(1) defendant had actual or constructive knowledge of some condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) defendant did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm, and (4) defendant’s failure to use reasonable care to reduce or eliminate unreasonable risk of harm proximately caused plaintiff's injuries.’” Quintero-Vasquez v. Wal-Mart Stores Texas, LLC, No. 4:14-CV-520-A, 2015 WL 1637954, at *2 (N.D. Tex. Apr. 10, 2015) (quoting LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006)). Notably, “[a] slip-and-fall plaintiff satisfies the notice element by establishing that (1) the defendant placed the substance on the floor, (2) the defendant actually knew the substance was on the floor, or (3) it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” Id. (quoting Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). Here, as in Quintereo, “Plaintiff has not alleged that defendant placed the substance on the floor.” Id. Accordingly, to satisfy the notice element, Plaintiff must present some evidence to establish that Defendant had either actual or constructive knowledge of the hazardous substance. If Plaintiff cannot do so, her claim fails as a matter of law.

         1. Actual Knowledge

         Defendant argues Plaintiff “cannot present evidence showing that Jo-Ann had actual knowledge, as there is no evidence that [Defendant] or any of its employees, representatives, or agents…knew that the substance was there prior to Plaintiff’s incident.” Def.’s Br. 6, ECF No. 15. Plaintiff responds by arguing that there is a genuine issue of material fact over whether Defendant had actual knowledge of the incident.[4] Pl.’s Br. 9–12, ECF No. 25. Plaintiff argues, based on the circumstances, that Defendant cannot in good faith deny knowledge of the incident itself. But for premises liability purposes, knowledge of the incident is not at issue. Rather the relevant inquiry is whether Defendant knew of the substance before the incident and failed to act reasonably if that condition presented a risk of harm. See Wal–Mart Stores, 81 S.W.3d at 814. Here, ...


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